EXHIBIT 1.01
DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
UNDERWRITING AGREEMENT
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to you and the other underwriters named in Schedule
II hereto (the "UNDERWRITERS"), for whom you are acting as representative(s)
(the "REPRESENTATIVE(S)"), its (i) debt securities (the "DEBT SECURITIES"), (ii)
warrants to purchase Debt Securities ("DEBT WARRANTS"), (iii) warrants to
purchase or sell, or representing the right to receive a cash value determined
by reference to the performance, level, or value of, securities of the Company
and/or one or more other issuers, one or more interest rates, one or more
currencies, one or more commodities, any other financial, economic or other
measure or instrument, including the occurrence or non-occurrence of any event
or circumstance, or one or more indices or baskets of the foregoing ("UNIVERSAL
WARRANTS"), (iv) contracts to purchase or sell, or representing the right to
receive a cash value determined by reference to the performance, level, or value
of, securities of the Company and/or one or more other issuers, one or more
interest rates, one or more currencies, one or more commodities, any other
financial, economic or other measure or instrument, including the occurrence or
non-occurrence of any event or circumstance, or one or more indices or baskets
of the foregoing ("PURCHASE CONTRACTS") and/or (v) units ("UNITS") comprised of
one or more Debt Securities, Debt Warrants, Universal Warrants and Purchase
Contracts (the "UNIT SECURITIES"), in such amount or amounts as is described in
Schedule I hereto. Such Debt Securities, Debt Warrants, Universal Warrants,
Purchase Contracts and Units listed in Schedule I hereto are hereinafter
collectively referred to as the "FIRM SECURITIES". Debt Warrants and Universal
Warrants are hereinafter collectively referred to as "WARRANTS."
In addition, if so identified in Schedule I hereto, the Company
proposes to grant to the Underwriters an option to purchase up to an additional
principal amount or number of Debt Securities, Debt Warrants, Universal
Warrants, Purchase Contracts or Units (the "OPTION Securities"). Such Firm
Securities and Option Securities, if purchased, are hereinafter collectively
referred to as the "SECURITIES", which term includes any Underlying Debt
Securities (as hereinafter defined) isssuable upon the exercise or in settlement
of Debt Warrants or Purchase Contracts, and any Unit Securities comprising any
Units, included in the Firm
2
Securities or Option Securities (but does not include any Underlying Company
Securities or Other Underlying Securities (as hereinafter defined)).
Debt Securities issuable upon the exercise or in settlement of Debt
Warrants or Purchase Contracts are hereinafter referred to as the "UNDERLYING
DEBT SECURITIES". Other securities of the Company issuable upon the exercise or
in settlement of Universal Warrants or Purchase Contracts are hereinafter
referred to as the "UNDERLYING COMPANY SECURITIES". Securities of issuers other
than the Company issuable upon the exercise or in settlement of Debt Securities,
Warrants or Purchase Contracts are hereinafter referred to as the "OTHER
UNDERLYING SECURITIES".
The Debt Securities will be issued under the indenture (the
"INDENTURE") identified in Schedule I hereto, between the Company and the
trustee (the "TRUSTEE") identified therein. The Warrants will be issued under
one or more separate warrant agreements (each a "WARRANT AGREEMENT") identified
in Schedule I hereto, between the Company and one or more separate institutions,
as warrant agent, each as identified in such Warrant Agreement (each a "WARRANT
AGENT"). The Purchase Contracts requiring the holders thereof to satisfy their
obligations at the time of issuance (the "PREPAID PURCHASE CONTRACTS") will be
issued under the Indenture identified in Schedule I hereto, between the Company
and the Trustee identified therein. The Units will be issued under one or more
separate unit agreements (each a "UNIT AGREEMENT") identified in Schedule I
hereto, between the Company and one or more separate institutions, as unit
agent, each as identified in such Unit Agreement (each a "UNIT AGENT"). Purchase
Contracts that are not Prepaid Purchase Contracts ("NON-PREPAID PURCHASE
CONTRACTS") will be issued under a governing document (which may be a Unit
Agreement if issued as part of a Unit) identified in Schedule I hereto.
If the firm or firms listed in Schedule II hereto include only the firm
or firms listed in Schedule I hereto, then the terms "UNDERWRITERS" and
"REPRESENTATIVES" shall each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and the
rules and regulations promulgated thereunder (the "RULES"), and has
carefully prepared and filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement on Form S-3 (the file number
of which is set forth in Schedule I hereto), which has become effective,
for the registration of the Securities under the Securities Act. The
registration statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities Act
and complies in all other material respects with such rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the
Securities Act ("RULE 424") a supplement to the form of prospectus
included in the registration statement relating to the initial offering of
the Securities and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect
to the Company to be set forth therein. The term "REGISTRATION STATEMENT"
means the registration statement, as amended at the date of this
Agreement,
3
including the exhibits thereto, financial statements, and all documents
incorporated therein by reference pursuant to Item 12 of Form S-3 (the
"INCORPORATED DOCUMENTS"), and such prospectus as then amended, including
the Incorporated Documents, is hereinafter referred to as the "BASIC
PROSPECTUS;" and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented), is hereinafter called
the "FINAL PROSPECTUS". Any preliminary form of the Basic Prospectus which
has heretofore been filed pursuant to Rule 424 is hereinafter called the
"INTERIM PROSPECTUS". Any reference herein to the Registration Statement,
the Basic Prospectus, any Interim Prospectus or the Final Prospectus shall
be deemed to refer to and include the Incorporated Documents which were
filed under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), on or before the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "AMEND," "AMENDMENT" or
"SUPPLEMENT" with respect to the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus shall be deemed
to refer to and include the filing of any Incorporated Documents under the
Exchange Act after the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the
case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
with the Commission pursuant to Rule 424, when, before any Delivery Date
(hereinafter defined) any amendment to the Registration Statement becomes
effective, when, before any Delivery Date, any Incorporated Document is
filed with the Commission, when any supplement to the Final Prospectus is
filed with the Commission and at each Delivery Date, the Registration
Statement, the Final Prospectus and any such amendment or supplement will
comply in all material respects with the applicable requirements of the
Securities Act and the Rules, and the Incorporated Documents will comply
in all material respects with the requirements of the Exchange Act or the
Securities Act, as applicable, and the rules and regulations adopted by
the Commission thereunder; on the date hereof and on each Delivery Date,
the Indenture shall have been qualified under and will comply in all
material respects with the Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT"); on the date it became effective, the Registration
Statement did not, and, on the date that any post-effective amendment to
the Registration Statement becomes effective, the Registration Statement
as amended by such post-effective amendment did not or will not, as the
case may be, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; on the date the Final Prospectus is
filed with the Commission pursuant to Rule 424 and on each Delivery Date,
the Final Prospectus, as it may be amended or supplemented, will not
include an untrue statement of a material fact or
4
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading; and on said dates, the Incorporated Documents will comply in
all material respects with the applicable provisions of the Exchange Act
and rules and regulations of the Commission thereunder, and, when read
together with the Final Prospectus, or the Final Prospectus as it may be
then amended or supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading; PROVIDED that the
foregoing representations and warranties in this paragraph (b) shall not
apply to statements or omissions made in reliance upon and in conformity
with written information furnished to the Company by or through the
Representatives on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement or the Final
Prospectus, as they may be amended or supplemented, or to any statements
in or omissions from the statement of eligibility and qualification on
Form T-1 of the Trustee under the Trust Indenture Act ("FORM T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of their
respective dates, complied in all material respects with the requirements
of the Securities Act and of the Rules and did not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Commission has not issued
an order preventing or suspending the use of the Basic Prospectus or any
Interim Prospectus.
(d) The nationally recognized firm of independent public accountants
whose report appears in the Company's most recent Annual Report on Form
10-K, which is incorporated by reference in the Final Prospectus, are
independent public accountants as required by the Securities Act and the
Rules.
(e) In the event that a report of a nationally recognized firm of
independent public accountants regarding historical financial information
with respect to any entity acquired by the Company is required to be
incorporated by reference in the Final Prospectus, such independent public
accountants were independent public accountants, as required by the
Securities Act and the Rules, during the period of their engagement to
examine the financial statements being reported on and at the date of
their report.
(f) The audited consolidated financial statements of the Company in
the Final Prospectus and the Registration Statement present fairly on a
consolidated basis the financial position, the results of operations,
changes in common stock and other stockholder's equity and cash flows of
the Company and its subsidiaries, as of the respective dates and for the
respective periods indicated, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved. The unaudited consolidated financial statements of the Company,
if any, included in the Final Prospectus and the Registration Statement
and the related notes are true, complete and correct, subject to normally
recurring changes resulting from year-end audit adjustments, and have been
prepared in accordance with the instructions to Form 10-Q.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material
adverse change in or any adverse development which materially affects the
business, properties, financial condition or
5
results of the Company or the Company and its subsidiaries taken as whole,
from the dates as of which information is given in the Registration
Statement and Final Prospectus.
(h) The Securities have been duly authorized. The Securities (other
than the UNDERLYING DEBT SECURITIES) and the Contract Securities
(as hereinafter defined)) have been executed and issued by the Company,
and assuming due authentication by the Trustee (in the case of Debt
Securities and Prepaid Purchase Contracts), the applicable Warrant
Agent (in the case of Warrants), any applicable Unit Agent or
other agent named in the Unit Agreement or other document identified
in Schedule I hereto (in the case of Non-Prepaid Purchase Contracts)
and the applicable Unit Agent (in the case of Units), and upon
payment and delivery in accordance with this Agreement, will constitute
legal, valid and binding obligations of the Company, entitled to the
benefits of, in the case of Debt Securities and Prepaid Purchase
Contracts, the Indenture, in the case of Warrants, the Warrant Agreement,
in the case of Non-Prepaid Purchase Contracts, the Unit Agreement or other
document identified in Schedule I hereto, and in the case of Units, the
Unit Agreement. The Underlying Debt Securities and the Contract
Securities, when executed, authenticated, issued and delivered against
payment therefor in the manner provided in the Indenture (in the case of
Debt Securities and Prepaid Purchase Contracts), the applicable Warrant
Agreement (in the case of Warrants), any applicable Unit Agreement or
other document identified in Schedule I hereto (in the case of Non-Prepaid
Purchase Contracts) and the applicable Unit Agreement (in the case of
Units), and (in the case of Contract Securities) sold pursuant to the
Delayed Delivery Contract, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of, in the case of
Debt Securities and Prepaid Purchase Contracts, the Indenture, in the case
of Warrants, the Warrant Agreement, in the case of Non-Prepaid Purchase
Contracts, the Unit Agreement or other document identified in Schedule I
hereto, and in the case of Units, the Unit Agreement. The Securities
(other than any Underlying Debt Securities and any Contract Securities),
the Indenture (if the Securities include Debt Securities, Debt Warrants or
Prepaid Purchase Contracts), each Warrant Agreement (if the Securities
include Warrants) , each Unit Agreement or other document identified in
Schedule I hereto (if the Securities include Non-Prepaid Purchase
Contracts) and each Unit Agreement (if the Securities include Units)
conform, and any Underlying Debt Securities and any Contract Securities,
when so issued and delivered and sold, will conform, in all material
respects to the description thereof contained in the Final Prospectus.
(i) Neither the Company nor any of the Significant Subsidiaries (as
defined below) is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and its subsidiaries
taken as a whole. The execution, delivery and performance of this
Agreement will not conflict with, result in the creation or imposition of
any material lien, charge or encumbrance upon any of the assets of the
Company or any of its subsidiaries pursuant to the terms of, or constitute
a default under, any material agreement, indenture or instrument, or
result in a violation of the corporate charter or by-laws of the Company
or any of its subsidiaries or any order, rule or regulation of any court
or governmental agency having jurisdiction over the Company, any of its
Significant Subsidiaries or their property. Except as set forth in the
Final
6
Prospectus or as required by the Securities Act, the Exchange Act, the
Trust Indenture Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and
performance of this Agreement. "Significant Subsidiary" means ▇▇▇▇▇▇
Brothers Inc., ▇▇▇▇▇▇ Brothers International (Europe), ▇▇▇▇▇▇ Brothers
Finance S.A. and ▇▇▇▇▇▇ Brothers Special Financing Inc.
(j) Each of the Company and the Significant Subsidiaries have been
duly organized, are validly existing and in good standing under the laws
of their respective jurisdictions of incorporation, are duly qualified to
do business and in good standing as foreign corporations and are fully
registered as a broker-dealer, broker, dealer or investment advisor, as
the case may be, in each jurisdiction in which their respective ownership
of property or the conduct of their respective businesses requires such
qualification or registration and in which the failure to qualify or
register would be reasonably likely, individually or in the aggregate, to
have a material adverse effect on the business, condition or properties of
the Company and its subsidiaries taken as a whole (a "MATERIAL ADVERSE
EFFECT"). Each of the Company and the Significant Subsidiaries holds all
material licenses, permits, and certificates from governmental authorities
necessary for the conduct of its business and owns, or possesses adequate
rights to use, all material rights necessary for the conduct of such
business and has not received any notice of material conflict with the
asserted rights of others in respect thereof, except in each case where
the failure to do so would not be reasonably likely, individually or in
the aggregate, to have a Material Adverse Effect; and each of the Company
and the Significant Subsidiaries has the corporate power and authority
necessary to own or hold its properties and to conduct the businesses in
which it is engaged. Except as may be disclosed in the Registration
Statement and the Final Prospectus, all outstanding shares of capital
stock of the Significant Subsidiaries have been duly authorized and are
validly issued and outstanding, fully paid and non-assessable and, except
for directors' qualifying shares, are owned by the Company, directly or
indirectly through subsidiaries, free and clear of any lien, pledge and
encumbrance or any claim of any third party.
(k) Except as described in the Registration Statement and the Final
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries which might reasonably be expected to
have a Material Adverse Effect or which is required to be disclosed in the
Registration Statement and the Final Prospectus.
(l) The certificates delivered pursuant to paragraph (h) of Section
6 hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Securities
were on the dates on which they were delivered, or will be on the dates on
which they are to be delivered, in all material respects true and
complete.
If the Securities include Debt Securities, Warrants or Purchase Contracts
that may be exercised for or settled by delivery of Underlying
7
Company Securities or Other Underlying Securities, the Company further
represents and warrants to each Underwriter as set forth in Schedule IV hereto.
2. SALE AND PURCHASE OF THE SECURITIES. The Company agrees to sell to each
Underwriter, and each Underwriter, on the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein stated, agrees to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the principal amount of Firm Securities
set forth opposite the name of such Underwriter in Schedule II hereto, except
that, if Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts of Debt
Securities and/or number of Warrants, Purchase Contracts or Units to be
purchased by the Underwriters shall be as set forth in Schedule II hereto, less
the respective amounts of Contract Securities determined as provided below. In
addition, the Company grants to the Underwriters an option to purchase up to the
principal amount or number of Option Securities specified in Schedule I hereto.
Such option is granted solely for the purpose of covering over-allotments in the
sale of Firm Securities and is exercisable as provided in Section 3 hereof. The
price of the Option Securities to the Underwriters shall equal the price of the
Firm Securities set forth in Schedule I hereto. Securities to be purchased by
the Underwriters are herein sometimes called the "UNDERWRITERS' SECURITIES" and
Securities to be purchased pursuant to Delayed Delivery Contracts (as
hereinafter defined) are herein called "CONTRACT SECURITIES." The obligations of
the Underwriters under this Agreement are several and not joint.
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities, or a portion thereof, from the Company
pursuant to delayed delivery contracts ("DELAYED DELIVERY CONTRACTS"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve, and the Underwriters will endeavor to
make such arrangements. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds and educational and charitable institutions. The Company will make Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount of Debt Securities and/or number of each type
of Warrant, Purchase Contract or Unit set forth in Schedule I hereto and the
total principal amount of Debt Securities and/or total number of each type of
Warrant, Purchase Contract or Unit to be purchased pursuant to Delayed Delivery
Contracts may not exceed the maximum principal amount and/or number set forth in
Schedule I hereto. The Underwriters will not have any responsibility in respect
of the validity or performance of Delayed Delivery Contracts. The principal
amount of Debt Securities and the number of each type of Warrant, Purchase
Contract or Unit to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount or number which bears the same proportion
to the total principal amount of Debt Securities and/or number of each type of
Warrant, Purchase Contract or Unit to be purchased pursuant to Delayed Delivery
Contracts as the principal amount of Debt Securities and/or number of such type
of Warrant, Purchase Contract or Unit set forth opposite the name of such
Underwriter bears to the total principal amount of Debt Securities and/or number
of such type of Warrant, Purchase Contract or Unit set forth in Schedule II
hereto, except to the extent that the Representatives determine that such
8
reduction shall be otherwise than in such proportion and so advise the Company
in writing; PROVIDED, HOWEVER, that the total principal amount of Debt
Securities and/ or number of each type of Warrant, Purchase Contract or Unit to
be purchased by all Underwriters shall be the total principal amount and/or
number set forth in Schedule II hereto less the total principal amount of Debt
Securities and/or number of such type of Warrant, Purchase Contract or Unit to
be purchased pursuant to Delayed Delivery Contracts.
3. DELIVERY AND PAYMENT. Delivery by the Company of the Firm Securities to
the Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by certified or official bank check or
checks payable in, or by wire transfer of, immediately available funds to or
upon the order of the Company shall take place at the office, on the date and at
the time specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Firm Securities
being herein called the "FIRST DELIVERY DATE").
Concurrently with the delivery of any payment for Firm Securities as
provided in this Section 3, the Company will deliver to the Representatives for
the respective accounts of the several Underwriters a check in an amount equal
to the fee set forth in Schedule I hereto with respect to the principal amount
of Debt Securities and/or number of Warrants, Purchase Contracts or Units for
which Delayed Delivery Contracts are made.
The Firm Securities will be registered in such names and in such
authorized denominations as the Representatives may request no less than two
full business days in advance of the First Delivery Date. The Company agrees to
have the Firm Securities available for inspection, checking and packaging by the
Representatives at such place as is designated by the Representatives, not later
than 1:00 p.m., New York City time, on the business day prior to the First
Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section 2 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate principal amount or number of Option Securities as to which the
option is being exercised, the names in which the Option Securities are to be
registered, the denominations in which the Option Securities are to be issued
and the date and time, as determined by the Representatives, when the Option
Securities are to be delivered, provided, however, that this date and time shall
not be earlier than the First Delivery Date nor earlier than the second business
day after the date on which the option shall have been exercised nor later than
the fifth business day after the date on which the option shall have been
exercised. The date and time the Option Securities are delivered are sometimes
referred to as the "SECOND DELIVERY DATE" and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "DELIVERY DATE."
Delivery by the Company of the Option Securities to the Representatives
for the account of the Underwriters and payment by the Underwriters therefor by
certified or official bank check or checks payable in, or by wire transfer of,
immediately available funds to or upon the order of the Company shall take place
on the Second Delivery Date at the office and at the
9
time specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company.
The Option Securities will be registered in such names and in such
authorized denominations as the Representatives may request no less than two
full business days in advance of the Second Delivery Date. The Company agrees to
have the Option Securities available for inspection, checking and packaging by
the Representatives at such place as is designated by the Representatives, not
later than 1:00 p.m., New York City time, on the business day prior to the
Second Delivery Date.
4. OFFERING BY UNDERWRITERS. The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or cause to be
distributed any Interim Prospectus and are authorized to distribute the Final
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Securities has been terminated, the Representatives will so advise the
Company.
5. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) (i) The Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424 as required thereby and will promptly
advise the Representatives (A) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424, (B) when any amendment to
the Registration Statement relating to the Securities shall have become
effective, (C) of any request by the Commission for any amendment of the
Registration Statement, the Final Prospectus, the Basic Prospectus or any
Interim Prospectus, or for any additional information, (D) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement, any registration statement or registration
statements of the Company on Form 8-A relating to the Securities (each, a
"FORM 8-A") or the qualification of the Indenture [or the
institution][???] or threatening of any proceedings for that purpose, (E)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose and (F) the delisting or threatened delisting of any Securities
listed on a "national securities exchange" as such term is defined in the
Exchange Act (each an "EXCHANGE") from such Exchange.
(ii) After the date of this Agreement and prior to the termination
of the offering of these Securities, the Company will not file any
amendment of the Registration Statement or amendment or supplement to the
Final Prospectus (except an amendment or supplement to the Final
Prospectus that is deemed to be incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3) without the consent of the
Representatives and will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(iii) Prior to receipt of the advice to be given by the
Representatives pursuant to Section 4, the Company will not file any
document that would be deemed to
10
be incorporated by reference in the Final Prospectus pursuant to Item 12
of Form S-3 without delivering to the Representatives a copy of the
document proposed to be so filed, such delivery to be made at least
twenty-four hours prior to such filing, and the Company will consult with
the Representatives as to any comments which the Representatives make in a
timely manner with respect to the document so delivered.
(b) Subject to clause (a)(iii) of this Section 5, if, at any time
when a prospectus relating to the Securities is required to be delivered
under the Securities Act, any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary at
any time to amend or supplement the Final Prospectus to comply with the
Securities Act or the Rules, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance
and will use its best efforts to cause any amendment of the Registration
Statement containing an amended Final Prospectus to be made effective as
soon as possible.
(c) The Company will deliver to the Representatives, without charge,
(i) signed copies of the Registration Statement relating to the Securities
and of any amendments thereto (including all exhibits filed with, or
incorporated by reference in, any such document) and (ii) as many
conformed copies of the Registration Statement and of any amendments
thereto which shall become effective on or before any Delivery Date
(excluding exhibits) as the Representatives may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will deliver, without
charge to the Representatives and to Underwriters and dealers, at such
office or offices as the Representatives may designate, as many copies of
the Basic Prospectus, any Interim Prospectus and the Final Prospectus as
the Representatives may reasonably request.
(e) The Company will make generally available to its security
holders and to the Representatives as soon as practicable an earnings
statement (which need not be audited) of the Company and its subsidiaries,
covering a period of at least 12 months beginning after the date the Final
Prospectus is filed with the Commission pursuant to Rule 424, which will
satisfy the provisions of Section 11(a) of the Securities Act.
(f) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the
Securities for offering and sale under the laws of such jurisdictions as
the Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
PROVIDED, HOWEVER, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
11
(g) So long as any Securities are outstanding, the Company will
furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission.
(h) If the Company has applied for the listing of any of the
Securities on an Exchange, it will use its best efforts to maintain the
listing of such Securities on such Exchange.
(i) For a period beginning at the time of execution of this
Agreement and ending on the later of the business day following the final
Delivery Date or following the date on which any price restrictions on the
sale of the Securities are terminated, without the prior consent of the
Representatives, the Company will not offer, sell, contract to sell or
otherwise dispose of (i) if the Securities include Debt Securities or Debt
Warrants, any debt securities of the Company covered by the Registration
Statement or any other registration statement filed under the Securities
Act having a maturity of more than one year from the date of issue or (ii)
if the Securities include Warrants or Purchase Contracts, any warrants or
purchase contracts substantially similar to such Warrants or Purchase
Contracts.
(j) The Company will use its best efforts to do and perform all
things to be done and performed hereunder prior to the final Delivery Date
and to satisfy all conditions precedent to the delivery of the Securities
to be purchased hereunder.
If the Securities include Debt Securities, Warrants or Purchase Contracts
that may be exercised for or settled by delivery of Underlying Company
Securities or Other Underlying Securities, the Company further agrees with the
several Underwriters as set forth in Schedule IV hereto.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy in
all material respects of the representations and warranties on the part of the
Company contained herein as of the date hereof and on each Delivery Date, to the
accuracy of any material statements made in any certificates, opinions,
affidavits, written statements or letters furnished to the Representatives or to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("UNDERWRITERS' COUNSEL") pursuant to this Section 6,
to the performance by the Company of its respective obligations hereunder and to
the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 not later than 5:00 p.m., New York City time, on the
second business day following the date of this Agreement or such later
date and time as shall be consented to in writing by the Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or of any Form 8-A, or suspending
the qualification of the
12
Indenture shall be in effect and no proceedings for such purpose shall be
pending before or threatened by the Commission and any requests for
additional information on the part of the Commission (to be included in
the Registration Statement or the Final Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the
Representatives.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall not have
been any change or decrease specified in the letter or letters referred to
in paragraph (i) of this Section 6 which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
offering and delivery of the Securities as contemplated by the
Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives the
opinion of an Associate General Counsel or Deputy General Counsel or the
Chief Legal Officer for the Company, dated the day of such Delivery Date,
to the effect that:
(i) The Company has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of
its incorporation with all requisite corporate power and authority
to own and operate its properties and to conduct its business as
described in the Final Prospectus.
(ii) The Securities (other than any Underlying Debt Securities
and any Contract Securities), the Indenture (if the Securities
include Debt Securities, Debt Warrants or Prepaid Purchase
Contracts), each Warrant Agreement (if the Securities include
Warrants), each Unit Agreement or other document identified in
Schedule I hereto (if the Securities include Non-Prepaid Purchase
Contracts) and each Unit Agreement (if the Securities include Units)
conform, and any Underlying Debt Securities and any Contract
Securities, when so issued and delivered and sold, will conform, in
all material respects to the description thereof contained in the
Final Prospectus.
(iii) Each of the Indenture (if the Securities include Debt
Securities, Debt Warrants or Prepaid Purchase Contracts), the
Warrant Agreements (if the Securities include Warrants), the Unit
Agreements or other documents identified in Schedule I hereto (if
the Securities include Non-Prepaid Purchase Contracts) and the Unit
Agreements (if the Securities include Units) has been duly
authorized, executed and delivered by the Company, and constitutes a
legal, valid and binding instrument enforceable against the Company
in accordance with its terms; the Indenture (if the Securities
include Debt Securities, Debt Warrants or Prepaid Purchase
Contracts) has been duly qualified under the Trust Indenture Act;
the Securities have been duly authorized; the Securities (other than
any Underlying Debt Securities and any Contract Securities) have
been executed and issued by the Company, and assuming due
authentication by the Trustee (in the case of Debt Securities or
Prepaid Purchase Contracts), the applicable Warrant Agent (in the
case of Warrants) , any applicable Unit Agent or other agent named
13
in the Unit Agreement or other document identified in Schedule I
hereto (in the case of Non-Prepaid Purchase Contracts) and the
applicable Unit Agent (in the case of Units), and upon payment
therefor and delivery thereof in accordance with this Agreement,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of, in the case of Debt Securities and
Prepaid Purchase Contracts, the Indenture, in the case of Warrants,
the Warrant Agreement, in the case of Non-Prepaid Purchase
Contracts, the Unit Agreement or other document identified in
Schedule I hereto, and, in the case of Units, the Unit Agreement;
the Underlying Debt Securities and the Contract Securities, when
executed, authenticated, issued and delivered against payment
therefor in the manner provided in the Indenture (in the case of
Debt Securities and Prepaid Purchase Contracts), the applicable
Warrant Agreement (in the case of Warrants), any applicable Unit
Agreement or other document identified in Schedule I hereto (in the
case of Non-Prepaid Purchase Contracts) and the applicable Unit
Agreement (in the case of Units), and (in the case of Contract
Securities) sold pursuant to the Delayed Delivery Contract, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of, in the case of Debt Securities and
Prepaid Purchase Contracts, the Indenture, in the case of Warrants,
the Warrant Agreement, in the case of Non-Prepaid Purchase
Contracts, the Unit Agreement or other document identified in
Schedule I hereto, and, in the case of Units, the Unit Agreement;
PROVIDED, HOWEVER, that the foregoing is subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated in this Agreement, except for (1) such
consents, approvals, authorizations or orders as have been obtained
under the Securities Act and such as may be required under the
Exchange Act and the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and (2) the qualification of the Indenture (if the
Securities include Debt Securities, Debt Warrants or Prepaid
Purchase Contracts) under the Trust Indenture Act, which has been
obtained.
(v) Such counsel does not know of any contracts or other
documents which are required by the Securities Act or by the Rules
to be filed as exhibits to the Registration Statement which have not
been filed as exhibits to the Registration Statement or incorporated
therein by reference as permitted by the Rules.
(vi) To the best of such counsel's knowledge, neither the
Company nor any Significant Subsidiary that is organized under the
laws of the United States or any State or territory thereof (a
"Domestic Significant Subsidiary") is in violation of its corporate
charter or by-laws, or in default under any material agreement,
14
indenture or instrument known to such counsel, the effect of which
violation or default would be material to the Company and its
subsidiaries taken as a whole.
(vii) This Agreement and, to the extent applicable, the
Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of
this Agreement and any Delayed Delivery Contracts by the Company
will not conflict with, or result in the creation or imposition of
any material lien, charge or encumbrance upon any of the assets of
the Company or any Domestic Significant Subsidiary pursuant to the
terms of, or constitute a default under, any material agreement,
indenture or instrument known to such counsel and to which the
Company or any Domestic Significant Subsidiary is a party or is
bound, or result in a violation of the corporate charter or by-laws
of the Company or any Domestic Significant Subsidiary or any order,
rule or regulation known to such counsel of any court or
governmental agency having jurisdiction over the Company, any
Domestic Significant Subsidiary or any of their respective
properties, the effect of which would be material to the Company and
its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under
the Securities Act and, if applicable, each Form 8-A has become
effective under the Exchange Act, and, to the best of the knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement or any Form 8-A has been issued and no
proceeding for that purpose is pending or threatened by the
Commission.
(ix) The Registration Statement, the Final Prospectus and each
amendment thereof or supplement thereto (except that no opinion need
be expressed as to the financial statements or other financial or
statistical data or any Form T-1 included or incorporated by
reference therein) comply as to form in all material respects with
the requirements of the Securities Act and the Rules.
(x) If the Securities are required to be listed on an Exchange
prior to issuance, as indicated on Schedule I hereto, authorization
for the listing of such Securities on such Exchange has been given,
subject to official notice of issuance and evidence of satisfactory
distribution[; and if the Securities otherwise are to be listed on
an Exchange, the Company has filed a preliminary listing application
and all required supporting documents with respect to the Securities
with such Exchange, and such counsel has no reason to believe that
the Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution].
(xi) Each Domestic Significant Subsidiary is a duly organized
and validly existing corporation in good standing under the laws of
the jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate its properties and to conduct
its business as described in the Final Prospectus; each of the
Company and its Domestic Significant Subsidiaries is duly qualified
15
to do business as a foreign corporation, is in good standing and is
duly registered as a broker-dealer, broker, dealer or investment
advisor, as the case may be, in each jurisdiction in which the
nature of the business conducted by it or in which the ownership or
holding by lease of the properties owned or held by it require such
qualification or registration and where the failure to so qualify or
register would have a Material Adverse Effect.
(xii) All the outstanding shares of capital stock of each
Domestic Significant Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and,
except for directors' qualifying shares, are owned by the Company or
a subsidiary of the Company free and clear of any claims, liens,
encumbrances and security interests.
(xiii) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of
this Agreement or is required to be disclosed in the Final
Prospectus which is not disclosed and correctly summarized therein.
If the Securities include Debt Securities, Warrants or Purchase Contracts
that may be exercised for or settled by delivery of Underlying Company
Securities or Other Underlying Securities, such opinion will cover the
additional matters set forth in Schedule IV hereto.
Such opinion shall also contain a statement that although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Final Prospectus (except as to those matters stated in
paragraph (d)(ii), above), such counsel has no reason to believe that (i) the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
(ii) the Final Prospectus contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (except that no opinion need be expressed as to the financial
statements or other financial or statistical data or the Form T-1 included or
incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions of local
counsel satisfactory to the Representatives for matters not governed by New York
law and may rely as to matters of fact, to the extent he or she deems proper,
upon certificates or affidavits of officers of the Company. If the Securities
include Debt Securities, Debt Warrants or Prepaid Purchase Contracts, such
counsel may rely on a certificate of the Trustee with respect to the execution
of the Securities by the Company and the authentication thereof by the Trustee.
Further, if any of the Securities are denominated or settled in any currency
other than U.S. dollars, such counsel may (A) state that, with respect to those
matters set forth in paragraph (iii), above, regarding the validity and
16
enforceability of the Indenture (if such Securities are Debt Securities, Debt
Warrants or Prepaid Purchase Contracts), the Warrant Agreements (if such
Securities are Warrants), the Unit Agreements or other documents identified in
Schedule I hereto (if such Securities are Non-Prepaid Purchase Contracts), the
Unit Agreements (if such Securities are Units) and such Securities, and, with
respect to these matters set forth in paragraphs (iv) and (vii), above,
regarding any order, rule or regulation of any court or governmental agency and
the authority of the Company to authorize, issue and sell such Securities, such
counsel has assumed that under the laws of any country in whose currency such
Securities are denominated or settled, if other than in U.S. dollars, that no
consent, approval, authorization, or order of, or filing with any governmental
agency, body or court is required for the consummation of the transactions
contemplated hereunder in connection with the issuance and sale of such
Securities and compliance with the terms and provisions thereof will not result
in any breach or violation of any of the terms and provisions in any statute,
rule, regulation or order of any governmental agency or body or any court and
(B) note that (a) a New York statute provides that with respect to a foreign
currency obligation, a court of the State of New York shall render a judgment or
decree in such foreign currency and such judgment or decree shall be converted
into the currency of the United States at the rate of exchange prevailing on the
date of entry of such judgment or decree and (b) with respect to a foreign
currency obligation, a United States Federal court in New York may award
judgment in U.S. dollars, provided that such counsel expresses no opinion as to
the rate of exchange such court should apply.
(e) If any of the Securities are denominated or settled in any currency
other than U.S. dollars, the Representatives shall have received from counsel,
satisfactory to the Representatives, such opinion or opinions, dated such
Delivery Date, with respect to compliance with the laws of any country, other
than the United States, in whose currency such Securities are denominated or
settled, the validity of the Securities, the Prospectus and other related
matters as they may require, and the Company shall have furnished to such
counsel such documents as they request for the purposed of enabling them to pass
upon such matters.
(f) The Representatives shall have received from Underwriters' Counsel
such opinion or opinions, dated the day of such Delivery Date, with respect to
the issuance and sale of the Securities, the Registration Statement, the Final
Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(g) If the Securities are required to be listed on an Exchange prior to
issuance, as indicated on Schedule I hereto, the Securities shall have been
authorized for listing, subject to official notice of issuance and evidence of
satisfactory distribution, no order suspending trading or striking or
withdrawing such Securities from listing on any Exchange or registration under
the Exchange Act shall be in effect, no proceedings for such purpose shall be
pending before or threatened by any Exchange or by the Commission and any Form
8-A shall have become effective under the Exchange Act.
17
(h) The Company shall have furnished to the Representatives a certificate
of its Chief Executive Officer, its President or any Managing Director or Vice
President and its Chief Financial Officer or its Treasurer, dated the day of
such Delivery Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus and this
Agreement, and that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of such
Delivery Date with the same effect as if made on such Delivery Date, and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such
Delivery Date.
(ii) No stop order suspending the effectiveness of the Registration
Statement or any Form 8-A has been issued and no proceedings for that
purpose have been instituted or threatened.
(iii) (x) The Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, (y) the Final Prospectus does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (z)
since the effective date of the Registration Statement there has not
occurred any event required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(i) At each Delivery Date, a nationally recognized firm of independent
public accountants shall have furnished to the Representatives a letter, dated
the day of such Delivery Date, confirming that they are independent auditors
with respect to the Company within the meaning of the Securities Act and in form
and substance satisfactory to the Representatives, stating in effect that:
(i) In their opinion, the consolidated financial statements of the
Company and its subsidiaries, and the supporting schedules, included in
the Registration Statement and the Final Prospectus and audited by them
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the related
published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any, included
in the Registration Statement and the Final Prospectus and of the latest
unaudited consolidated financial statements made available by the Company
and ▇▇▇▇▇▇ Brothers Inc., carrying out certain specified procedures (but
not an audit in accordance with generally accepted auditing standards), a
reading of the minutes
18
of the meetings of the directors of the Company and ▇▇▇▇▇▇ Brothers Inc.,
and inquiries of certain officials of the Company and its subsidiaries,
who have responsibility for financial and accounting matters of the
Company and its subsidiaries, as to transactions and events subsequent to
the date of the most recent audited consolidated financial statements
included in the Registration Statement and the Final Prospectus, nothing
came to their attention that caused them to believe that:
(A) any material modifications should be made to the unaudited
consolidated financial statements of the Company and its
subsidiaries, if any, included in the Registration Statement and the
Final Prospectus, for them to be in conformity with generally
accepted accounting principles; and such financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the published
instructions, rules and regulations thereunder;
(B) the unaudited capsule information of the Company and its
subsidiaries, if any, included in the Registration Statement and the
Final Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements of the Company from
which it was derived or was not determined on a basis substantially
consistent with that of the corresponding financial information in
the latest audited financial statements of the Company included in
the Registration Statement and the Final Prospectus;
(C) (I) as of the latest date as of which the Company and its
subsidiaries have monthly financial statements, there was any
decrease in the capital stock, additional paid-in capital or
retained earnings, or increase in long-term indebtedness of the
Company and its subsidiaries, as compared with the amounts shown in
the most recent consolidated statement of financial condition of the
Company and its subsidiaries included in the Registration Statement
and the Final Prospectus, (II) with respect to the period subsequent
to the date of the most recent financial statements included in the
Registration Statement and the Final Prospectus and extending
through the latest date as of which the Company and its subsidiaries
have monthly financial statements, there was a consolidated net loss
or (III) with respect to the amounts of net capital or excess net
capital of ▇▇▇▇▇▇ Brothers Inc. determined pursuant to Commission
Rule 15c3-1 and shown in the most recent financial statement of
▇▇▇▇▇▇ Brothers Inc. filed pursuant to Commission Rule 17a-5, there
has been any decrease in such amounts as compared with the amounts
shown in the most recent consolidated financial statements included
in the Registration Statement and the Final Prospectus; and
(D) as of a specified date not more than three business days
prior to the date of the letter, there was any decrease in the
capital stock or
19
additional paid-in capital, or increase in long-term indebtedness of
the Company and its subsidiaries, as compared with the amounts shown
in the most recent consolidated statement of financial condition of
the Company and its subsidiaries included in the Registration
Statement and the Final Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof, unless
said explanation is not deemed necessary by the Representatives.
(iii) If pro forma financial statements are included in the
Registration Statement or the Final Prospectus, (x) they have read
such pro forma financial statements, (y) they have made inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company as to the basis for
their determination of the pro forma adjustments and whether such
pro forma financial statements comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X and (z) they have proved the arithmetic accuracy
of the application of the pro forma adjustments to the historical
amounts; and as a result thereof, nothing came to their attention
that caused them to believe that such pro forma financial statements
do not so comply with Rule 11-02 of Regulation S-X and that such pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements.
(iv) They have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is expressed in
dollars, or percentages derived from dollar amounts, and has been
obtained from the general accounting records of the Company) set
forth in the Registration Statement, as amended, and the Final
Prospectus, as amended or supplemented, and in Exhibit 12 to the
Registration Statement, including specified information, if any,
included or incorporated from the Company's Annual Report on Form
10-K incorporated therein or specified information, if any, included
or incorporated from any of the Company's Quarterly Reports on Form
10-Q or its Current Reports on Form 8-K incorporated therein, agrees
with the accounting records of the Company and its subsidiaries or
computations made therefrom, excluding any questions of legal
interpretation.
(j) So long as historical financial information with respect to any entity
acquired by the Company is required to be included in the Registration Statement
or the Final Prospectus, at such Delivery Date, a nationally recognized firm of
independent public accountants shall have furnished to the Representatives a
letter, dated the day of such Delivery Date, in form and substance satisfactory
to the Representatives, confirming that they are, or were as of a stated time,
independent public accountants within the meaning of the Securities Act and the
Rules and stating in effect that:
20
(i) In their opinion the audited consolidated financial statements
of such entity acquired by the Company, and the supporting schedules,
included in the Registration Statement and Final Prospectus and examined
by them, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related published
rules and regulations of the Commission thereunder.
(ii) They have performed certain other specified procedures as a
result of which they determined that certain historical financial
information relating to such entity acquired by the Company as required to
be reported pursuant to rules and regulations promulgated under the
Exchange Act agree with the accounting records of such entity acquired by
the Company or computations made therefrom, excluding any questions of
legal interpretation.
(k) Subsequent to the execution of this Agreement, there shall not have
been any decrease in the ratings of any of the Company's debt securities by
▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings Group.
(l) The Company shall have accepted Delayed Delivery Contracts in any case
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company.
(m) Prior to such Delivery Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives or Underwriters' Counsel may reasonably request.
If the Securities include Debt Securities, Warrants or Purchase Contracts
that may be exercised for or settled by delivery of Underlying Company
Securities or Other Underlying Securities, the obligations of the Underwriters
to purchase the Securities shall be subject to the additional conditions set
forth in Schedule IV hereto.
If any of the conditions specified in this Section 6 (or, if applicable,
in Schedule IV hereto) shall not have been fulfilled when and as required by
this Agreement, or if any of the certificates or opinions furnished to the
Representatives or Underwriters' Counsel pursuant to this Section 6 shall not be
in all material respects reasonably satisfactory in form and substance to the
Representatives and to Underwriters' Counsel, this Agreement and all obligations
of the Underwriters hereunder may be canceled at, or at any time prior to, such
Delivery Date by the Representatives. Notice of such cancellation shall be given
to the Company in writing or by telegraph confirmed in writing.
7. EXPENSES. (a) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company will pay
all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issuance, sale and delivery of the
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of
21
the Registration Statement (including all exhibits thereto), any Interim
Prospectus, the Basic Prospectus, the Final Prospectus and any amendments
thereof or supplements thereto, the Indenture, any Warrant Agreement, any Unit
Agreement and any other document identified in Schedule I hereto, and the rating
of the Securities by one or more rating agencies, all costs and expenses
(including fees of Underwriters' Counsel and their disbursements) incurred in
connection with blue sky qualifications, advising on the legality of the
Securities for investment, the filing requirements, if any, of the National
Association of Securities Dealers, Inc. in connection with its review of
corporate financings, the fee for listing the Securities on any Exchange or
Exchanges, the fees and expenses of the Trustee, Warrant Agents and Unit Agents,
as applicable, and all costs and expenses of the printing and distribution of
all documents in connection with such offering. Except as provided in this
Section 7, the Company will have no responsibility to the Underwriters for the
Underwriters' own costs and expenses, including the fees of Underwriters'
Counsel and any advertising expenses in connection with any offer the
Underwriters may make.
(b) If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless
each Underwriter and each person who controls such Underwriter within the
meaning of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, as originally filed or in any amendment
thereof, or in any Interim Prospectus, the Basic Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Representatives on
behalf of any Underwriters specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Interim Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy of the Final
Prospectus at or prior to the confirmation of the sale of such Securities to
such person
22
in any case where such delivery is required by the Securities Act and the untrue
statement or omission of a material fact contained in the Basic Prospectus or
any Interim Prospectus was corrected in the Final Prospectus, unless such
failure to deliver the Final Prospectus was a result of noncompliance by the
Company with Section 5(d) hereof. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person, if any, who controls the Company within the meaning
of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that the same was made therein in reliance upon and in conformity
with written information furnished to the Company as herein stated by the
Representatives on behalf of such Underwriters specifically for use in the
preparation thereof, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The statements set forth in the last paragraph
of the cover page and under the heading "Underwriting" in the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Registration Statement and the Final
Prospectus, as the case may be, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; PROVIDED,
HOWEVER, if the defendants in any such action include both the indemnified party
and the indemnifying party and either (i) the indemnifying party or parties and
the indemnified party or parties mutually agree or (ii) representation of both
the indemnifying party or parties and the indemnified party or parties by the
same counsel is inappropriate under applicable standards of professional conduct
due to actual or potential differing interests between them, the indemnified
party or parties shall have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the defense of such action on
behalf of such
23
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
counsel in connection with the assumption of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a) representing the indemnified parties under subparagraph (a), as the case may
be, who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a) of
this Section 8 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company on grounds of policy or other similar
grounds, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending the same) to
which the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discounts appearing on the cover page of
the Final Prospectus bear to the public offering prices appearing thereon and
the Company is responsible for the balance; PROVIDED, HOWEVER, that (i) in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters) be responsible for any amount in excess of the underwriting
discounts applicable to the Securities purchased by such Underwriter hereunder
and (ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
the Securities Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Securities Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
24
to clauses (i) and (ii) of this subparagraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
subparagraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this
subparagraph (d).
9. DEFAULT BY AN UNDERWRITER. If, on any Delivery Date, any one or more
Underwriters shall fail to purchase and pay for all of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Debt Securities and/or number of each type of Warrant,
Purchase Contract or Unit set forth opposite their names in Schedule II hereto
bear to the aggregate principal amount of Debt Securities and/or number of such
type of Warrant, Purchase Contract or Unit set opposite the names of the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the event
that the aggregate principal amount of Debt Securities and/or number of each
type of Warrant, Purchase Contract or Unit which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of the Debt Securities and/or number of such type of Warrant,
Purchase Contract or Unit, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
non-defaulting Underwriters or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, such Delivery Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration Statement
and the Final Prospectus or in any other documents or arrangements may be
effected. Nothing herein contained shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any non-defaulting Underwriter for
damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company at or
prior to delivery of and payment for all the Securities, if, prior to such time
(i) trading in securities generally on the NYSE, any other Exchange on which any
of the Securities are to be listed or the over-the-counter market shall have
been suspended or limited or minimum prices shall have been established on the
NYSE, any such Exchange or the over-the-counter market, (ii) a banking
moratorium shall have been declared either by federal or New York State
authorities, (iii) any new restriction materially affecting the distribution of
the Securities shall have become effective, trading in any securities of the
Company shall have been suspended or halted by any national securities exchange,
the National Association of Securities Dealers, Inc. or the Commission, (iv) the
United States (or, if any of the Securities are denominated or settled in a
currency other than U.S. dollars, any country which is the issuer of a currency
with respect to which the amount of any payment on such Security is determined
or in whose currency any Securities are denominated or settled) becomes engaged
in hostilities or there is an escalation in hostilities
25
involving the United States (or such other country) or there is a declaration of
a national emergency or war by the United States (or such other country) or (v)
there shall have been such a material adverse change in national or
international political, financial or economic conditions, national or
international equity markets or currency exchange rates or controls as to make
it, in the judgment of the Representatives, inadvisable or impracticable to
proceed with the payment for and delivery of the Securities.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers (as such officers) and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of its officers or directors or any controlling person within the
meaning of the Securities Act, and will survive delivery of the payment for the
Securities.
12. NOTICES. All communications hereunder will be in writing, and, if sent
to the Representatives will be mailed, delivered, telegraphed or telexed and
confirmed to them, at the address specified in Schedule I hereto; or, if sent to
the Company will be mailed, delivered, telegraphed or telexed and confirmed to
it at Three World Financial Center, New York, New York 10285, Attention: Chief
Financial Officer.
13. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their successors and, to the extent and only to the
extent stated in Section 8 hereof, the officers and directors and controlling
persons referred to in Section 8 hereof, and except as provided in Section 8
hereof, no person other than the parties hereto and their respective successors
will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By
----------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
▇▇▇▇▇▇ BROTHERS INC.
By
------------------------------------------
Name:
Title:
Acting on behalf of the several
Underwriters named in Schedule II annexed hereto.
SCHEDULE I
[EXAMPLE ONLY--TO BE MODIFIED AS NECESSARY TO APPLY TO PARTICULAR SECURITY]
Date of Underwriting
Agreement: , 20
Registration Statement
No.: 333-______________
Representatives and
Addresses: ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title of
Securities:
Principal Amount
or Number of Firm
Securities to be issued:
Maximum Principal
Amount or Number of
Option Securities to be issued:
Issue Price:
[Stated Maturity]
[Expiration Date]
[Settlement Date]:
Payments:
[Indenture][Warrant Agreement]
[Unit Agreement][Other Document]:
[Trustee][Warrant Agent]
[Unit Agent][Other Issuing Agent]:
2
Calculation Agent:
Form of
Securities:
Issuable jointly with other Securities:
Repurchase provisions:
Redemption provisions:
Listing:
Price to public:
Purchase price:
Currency of purchase:
Form of Payment:
First Delivery Date, Time
and Location:
Date:
Time:
Location: ▇▇▇▇▇▇ Brothers Holdings Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Delayed Delivery
Arrangements:
SCHEDULE II
UNDERWRITERS
------------
▇▇▇▇▇▇ Brothers Inc...........................
Total.........................................
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 20
[Insert name and address of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇ Brothers
Holdings Inc. (the "Company"), and the Company agrees to sell to the
undersigned, [$] [principal amount] [number] of the Company's [Title of
Securities] (hereinafter called the "Securities"), offered by the Company's
Prospectus dated , 20 , and Prospectus Supplement dated , 20 , receipt of a copy
of which is hereby acknowledged, at a purchase price of [ % of the principal
amount thereof, plus accrued interest from the date from which interest accrues
as set forth below] [ per Warrant, Purchase Contract or Unit], and on the
further terms and conditions set forth in this contract.
[The undersigned will purchase the Securities from the Company
on , 20 , (the "Delivery Date") [and interest on the Securities so purchased
will accrue from , 20 )].
[The undersigned will purchase the Securities from the Company
on the delivery date or dates and in the principal amount or amounts set forth
below:
Number of
Warrants, Principal
Purchase Amount of
Contracts Debt Date from Which
or Units Securities Delivery Date Interest Accrues
---------------------------------------------------------------------------
[$] , 20 , 20
[$] , 20 , 20
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date"].
Payment for the Securities to be purchased by the undersigned
shall be made on or before [a.m.][p.m.], New York City time, on [the] [each]
Delivery Date to or upon the order of the Company in New York Clearing House
(next day) funds, at your office or at such other place as shall be agreed
between the Company and the undersigned upon delivery to the undersigned of the
Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
2
The obligation of the undersigned to take delivery of and make
payment for Securities on [the][each] Delivery Date, and the obligation of the
Company to sell and deliver Securities on the Delivery Date, shall be subject to
the conditions (and neither party shall incur any liability by reason of the
failure thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on the
date hereof, shall not on [the][each] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject, and (2) the Company, on
or before [the][each] Delivery Date, shall have sold to certain underwriters
(the "Underwriters") such principal amount of Debt Securities and/or number of
Warrants, Purchase Contracts or Units as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith. The obligation of
the undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
3
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
-----------------------------------
(Name of Purchaser)
By
---------------------------------
(Signature and Title of Officer)
---------------------------------
(Address)
Accepted:
▇▇▇▇▇▇ Brothers Holdings Inc.
By
------------------------------------
(Authorized Signature)
SCHEDULE IV
A. ADDITIONAL REPRESENTATIONS AND WARRANTIES
The Company further represents and warrants to each Underwriter that:
B. ADDITIONAL AGREEMENTS
The Company further agrees with the several Underwriters that:
C. ADDITIONAL OPINIONS
The opinion of an Associate General Counsel or Deputy General Counsel or the
Chief Legal Officer for the Company shall be to the further effect that:
D. ADDITIONAL CONDITIONS PRECEDENT
The obligations of the Underwriters to purchase the Securities shall be subject
to the further conditions that:
